Section 9 Defendant’s Fault

• Library: Damages 2012

In Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. 1969), Missouri adopted the rule of strict liability in tort stated in Restatement (Second) of Torts § 402A (1965). As a result, damages could be apportioned between joint tortfeasors based on § 402A liability. See Mo. Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978); see also Welkener v. Kirkwood Drug Store Co., 734 S.W.2d 233 (Mo. App. E.D. 1987); State ex rel. Gen. Elec. Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984).

Missouri addressed the issue of a retailer whose liability is based solely on its status as a seller in the stream of commerce by adopting what is commonly called the “innocent seller statute.” Section 537.762, RSMo 2000, states that a defendant may move for dismissal of the claims against it by furnishing proof by affidavit that it is aware of no facts on which a verdict might be reached against it, other than its...